Nine Films & Television Pty Ltd v Ninox Television Limited [2005] FCA 356

FEDERAL COURT OF AUSTRALIA

Nine Films & Television Pty Ltd v Ninox Television Limited [2005] FCA 356 EVIDENCE – privilege – legal professional privilege – waiver – letter from Ninox to Nine referring to legal advice obtained by Ninox and demanding that Nine cease production and distribution of television program – newspaper report quoting Ninox as saying it had engaged senior counsel and was moving forward based on his recommendations – no inconsistency between disclosure and confidentiality – assertion that legal advice has been obtained and is being followed is not sufficient to waive privilege – newspaper report is hearsay and cannot be relied upon – report does not disclosure substance or content of advice with sufficient specificity – waiver by pleadings – state of mind not put directly in issue – no waiver Evidence Act 1995 (Cth) s 122 Trade Practices Act 1974 (Cth) Copyright Act 1968 (Cth) s 202 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 followed Potter v Minahan (1908) 7 CLR 277 referred to Baker v Campbell (1983) 153 CLR 52 referred to Bennett v Chief Executive Officer of the Australian Customs Service (2004) 210 ALR 220 followed Mann v Carnell (1999) 201 CLR 1 followed Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 referred to Ampolex v Perpetual Trustee Company (Canberra) Ltd (1996) 137 ALR 28 referred to Ampolex v Perpetual Trustee Company (Canberra) Ltd (1996) 40 NSWLR 12 referred to Adelaide Steamship Co Ltd v Spalvins (1998) 152 ALR 418 referred to Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1996) 188 CLR 501 followed Briginshaw v Briginshaw (1938) 60 CLR 336 followed Twentieth Century Fox Film Corporation v South Australian Brewing Co Ltd (1996) 34 IPR 225 applied Australian Home Loans Ltd t/as Aussie Home Loans v Phillips & Technocrat Computing Pty Ltd (1998) 40 IPR 392 referred to DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 127 FCR 499 followed S W Hart & Co Pty Ltd v Edwards Hot Water Systems (1980) 30 ALR 657 followed Skinner & Co v Perry (1893) 10 RPC 1 followed NINE FILMS & TELEVISION PTY LTD (ACN 008 685 407) AND NINE NETWORK AUSTRALIA PTY LTD (ACN 066 040 024) v NINOX TELEVISION LIMITED (formerly known as NINOX FILMS LIMITED), TELEVISION NEW ZEALAND LIMITED AND JOHN CHARLES McEWEN NSD 1820 OF 2004 TAMBERLIN J SYDNEY 5 APRIL 2005